Implementing ICJ’s judgment on Jhadav – A question of National Security?

In Blog, Human Security, National Security
January 5, 2022
Abdul Aziz
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The lack of bipartisan consensus on the new bill introduced to implement the judgment of the International Court of Justice’s (ICJ) decision on Kulbhushan Jadhav reflects a substandard understanding of the national security paradigm in Pakistan. Adversarial states like India want Pakistan to be in defiance of the judgment of ICJ so a pathway for

The lack of bipartisan consensus on the new bill introduced to implement the judgment of the International Court of Justice’s (ICJ) decision on Kulbhushan Jadhav reflects a substandard understanding of the national security paradigm in Pakistan. Adversarial states like India want Pakistan to be in defiance of the judgment of ICJ so a pathway for international sanctions can be opened. A deliberate refusal to comply with international obligations can bring disrepute to Pakistan’s reputation as a responsible international law-abiding state and put Pakistan’s national interest and security at risk.

On 17^th July 2019, the ICJ delivered its final verdict on the Jadhav case declaring that Pakistan violated its obligations under the 1963 Vienna Convention on Consular Relations (VCCR). The ICJ declared that India had a right to “restitutio in integrum,” which means that the aggrieved party must be bought back to the same position they would have been had their rights not been violated. While Pakistan did oppose the jurisdiction of ICJ and the applicability of VCCR, the ICJ decided against Pakistan on both of those counts.

The main issue that Pakistan was asked to address post-judgment was to ensure that India was granted consular access as well as offer Jadhav a fair trial in the shape of review and reconsideration. Pakistan initially promulgated an ordinance to give Jadhav the right to file a review and reconsideration petition in the Islamabad High Court. Later on, Pakistan also offered consular access to India; however, the Indian consulate in Islamabad refused to accept it and claimed that the access was not unconditional.

The Indian consulate also refused to file a review and reconsideration petition to the Islamabad High Court. This prompted the Ministry of Foreign affairs to file a petition at the High Court titled Miscellaneous petition No 1 of 2021 to appoint a lawyer for Kulbushan Jadhav, however, the case has been pending in High Court till date as the Indian consulate refuses to be involved in the case citing diplomatic immunity.

The International Court of Justice (Review and reconsideration) bill is a step in the right direction as it is evident from the chain of events that India is adamant about proving how Pakistan is failing to comply with the judgment of the ICJ. It is a deliberate lawfare ploy where the Indian state wants to present a case in front of the international community that Pakistan’s failure obliges the international community to step in.

If India is successfully able to prove that Pakistan did not fulfill the criteria set out by ICJ there would be numerous political and legal consequences. Firstly, India could move a motion or request the UNSC council to exercise its right to implement a judgment under article 94(2). Article 94(2) states that in cases where countries fail to implement the judgment of ICJ the UNSC can impose sanctions and use force. Usually, 9 member states out of 15 have to agree on such a motion before an action can be taken. The 9 members states who are required to approve include the five permanent members of the UNSC.

Pakistan’s all-weather friend China is part of the permanent five and it is likely that in such a situation a motion may not go through but it is a mechanism that does exists and can be used against Pakistan. Moreover, India can also bring such a complaint before the United Nations General Assembly under Articles 10, 11, 14, 22, and 35 of the Charter vis-à-vis the provision of Resolution 377 popularly referred to as Uniting for Peace Resolution.

The moving of such resolutions would greatly diminish Pakistan’s image as an international law-abiding state. It would also make it hard to effectively argue the case of Kashmir internationally when Pakistan is actively breaching international law. It greatly affects our standing in the international community. It is important here to understand that the national security of Pakistan is not just internal but external and India wants to make the process of implementation harder so they can further wage lawfare against Pakistan by claiming that Pakistan is a rogue state that refuses to abide by international rules.

India continues to deny that Pakistan has created an effective mechanism for review and reconsideration of the Kulbushan Jadav case. It refuses to exercise its option to file a petition or take up the option of consular access, it is likely that the Indian state will either move back to the ICJ for further clarification on interpretation or try and move a resolution in the Security Council. However, since Pakistan has used its resources and legislation to implement the judgment of the ICJ it is gravely unlikely that India will succeed. The ICJ in its judgment in paragraph 147 clearly states that Pakistan is under an obligation to provide effective review and reconsideration by means of “its own choosing” which Pakistan has successfully done.

Pakistan, by passing the new bill, has taken a step in the right direction in protecting its national security and legal case in the ICJ. There is a dire need for a better understanding of the national security paradigm and a bipartisan consensus on all issues of national interest. A refusal to implement the judgment of ICJ would have led to dire consequences either in the form of sanctions or a dent in its reputation of being a responsible state. Pakistan can only protect its interest when it is aware of its obligation and responsibilities under international law. It is this awareness and proactiveness which will protect it against any future lawfare attacks by adversarial states.